How Obama’s court strategy may help save Obamacare

The ruling on Obamacare is a dramatic example of why Obama forced the issue. | AP Photo

One liberal legal advocate said Tuesday that he’s hopeful the Obama D.C. Circuit appointees will side with other judges, including a three-judge panel of the 4th U.S. Circuit Court of Appeals that unanimously backed the government’s authority to interpret the law to allow the subsidies.

“I would hope President Obama’s four extraordinarily qualified nominees [to the D.C. Circuit] would side with the six other judges across the ideological spectrum in rejecting these challenges to affordable health care,” said Doug Kendall of the Constitutional Accountability Center. “One of the most important impact of filling the four vacancies to this court has been to change dramatically the makeup of the en banc panel.”

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However, several experts cautioned that it’s not certain that all seven Democratic appointees on the court or the four Republican ones will vote along party lines — or even that the full bench of the D.C. Circuit will agree to take up the case. (Technically, any en banc court is likely to be made up of eight Democratic appointees and five Republican ones, since the two senior judges who joined in Tuesday’s ruling have the right to join the larger body for that case. But since the pair of senior judges split, their presence is unlikely to affect the outcome.)

“The new appointees really only took their seats in December and January and we’re only in July. We’re just getting first opinions from these new judges,” said Drexel University law professor Lisa McElroy. She studied five years of D.C. Circuit opinions and found that judges usually did not appear to decide cases along ideological lines.

However, McElroy said there are several reasons to think the Obamacare subsidies might be different. For one thing, there’s no precedent that directly dictates the outcome of the case, since it involves interpreting wording in the Affordable Care Act.

“While my statistics say it doesn’t necessarily make a difference, you do wonder in a case that is so political,” McElroy said. “I think that if I were the White House, I would be very glad I had done it,” she said, referring to the nomination and confirmation of the three newest Obama-appointed judges.

While Obama supporters may be celebrating his strategy now and continue to reap benefits from it for years to come, McElroy said at some point liberals could regret cutting out much of the filibuster power. “Hindsight is 20-20, but 10 years from now if there’s a Republican president and they want those nominees filibustered, they may feel differently,” she said.

Of course, even if the D.C. Circuit takes up the Obamacare subsidies case en banc, it might not have the final word since the Supreme Court could decide to consider the issue.

The Obama administration’s legal strategy appears to be to try to keep the issue out of the Supreme Court by getting the full bench of the D.C. Circuit to rule for the administration, doing away with the split with the 4th Circuit that developed on Tuesday.

If Tuesday’s rulings stand, it’s virtually certain the Supreme Court would take the case to prevent Obamacare from being interpreted differently in different parts of the country. However, if the conflict is resolved by the lower courts, it’s possible the high court might decide not to wade into the issue.

“If there’s no circuit split, I would not be surprised at all if the Supreme Court doesn’t hear this case,” Kendall said.

However, Levey said that, even without a split in the lower circuits, he thinks the Supreme Court could come up with the four votes needed to dive into the issue. “I certainly think there’s three,” he said. “It’s an existential threat to Obamacare.”

Levey also said he hopes Obama’s handling of the D.C. Circuit nominations serves as a reminder to conservatives that Supreme Court fights are not the only ones to take heed of. “Not only are there a lot of issues that don’t reach the Supreme Court, but what lower courts do affects whether the Supreme Court takes a certain case. At the end of the day, people should care, certainly, about the circuit court.”